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BRADY DISCLOSURE REQUIREMENTS

Model PolicyEffective Date

April 2009

Number

Subject

Brady Disclosure Requirements

Reference Special Instructions

Distribution Reevaluation Date No. Pages

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I. PURPOSEIt is the purpose of this policy to provide officers

with the information necessary to properly fulfill the reporting and testimonial requirements mandated under U.S. Supreme Court decisions including Brady v. Maryland 373 U.S. 83 (1963) and Giglio v. U.S. 405 U.S. 150 (1972).

II. POLICYThe Brady decision and subsequent rulings have

made it a duty of all law enforcement agencies to (1) identify and provide to the prosecution any exculpatory material that would have a reasonable probability of altering the results in a trial, or any material that could reasonably mitigate the sentencing of a defendant and (2) any material relevant to the credibility of government witnesses, including, but not limited to, police officers. It is the policy of this police department to follow Brady disclosure requirements consistent with the law.

III. DEFINITIONSMaterial evidence: Exculpatory evidence is

“material” if there is a reasonable probability that disclosing it will change the outcome of a criminal proceeding. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial or sentencing of a criminal case.

Exculpatory evidence/Brady material: Brady violations are, by definition, violations of an individual’s 14th Amendment right to due process of law. Exculpatory evidence is evidence that is favorable to the accused; is material to the guilt, innocence, or punishment of the accused; and that may impact the

credibility of a government witness, including a police officer. Impeachment material is included in the Brady disclosure requirements.

Duty to disclose: The affirmative constitutional duty of the police to notify the prosecutor of any Brady material.

IV. PROCEDURESA. General Provisions of Disclosure

1. Affirmative Duty to ReportThis department shall exercise due diligence to ensure that material of possible Brady relevance is made available to the office of the prosecutor.

2. Although the defense is not required to request potential Brady material1; it is this depart-ment’s responsibility to disclose such material as soon as reasonably possible to the office of the prosecutor, or in time for effective use at trial. Responsibility for disclosing such mate-rial extends from indictment through the trial and sentencing process.

3. It is the prosecutor’s responsibility to establish whether material disclosed by this department must be provided to the defense.

4. Suppression of evidence favorable to an ac-cused violates due process when the evidence is material either to guilt or to punishment, irrespective of good or bad faith. There is no distinction between “impeachment evidence” and “exculpatory evidence” for Brady disclo-sure purposes.

1 Subject to state requirements or limitations.

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5. Allegations that cannot be substantiated, are not credible, or have resulted in an individual’s exoneration are generally not considered to be potential impeachment information.

B. Examples of Brady material1. Examples of Brady material that may be

subject to disclosure include, but may not be limited to, the following:a. Information that would directly negate the

defendant’s guilt concerning any count in an indictment.

b. Information that would cast doubt on the admissibility of evidence that the govern-ment plans to offer that could be subject to a motion to suppress or exclude.

c. Any criminal record or criminal case pend-ing against any witness whom the prosecu-tion anticipates calling.

d. The failure of any proposed witness to make a positive identification of a defen-dant.

e. Information that casts doubt on the credi-bility or accuracy of a witness or evidence.

f. An inconsistent statement made orally or in writing by any proposed witness.

g. Statements made orally or in writing by any person that are inconsistent with any statement of a proposed government wit-ness regarding the alleged criminal con-duct of the defendant.

h. Information regarding any mental or physical impairment of any governmental witness that would cast doubt on his or her ability to testify accurately and truthfully at trial.

i. Information that tends to diminish the degree of the defendant’s culpability or the defendant’s offense level under state or federal sentencing guidelines.

j. A finding of misconduct by a Board of Rights or Civil Service Commission that reflects on the witness’s truthfulness, bias, or moral turpitude. This includes employ-ees under suspension.

k. Evidence that a proposed witness has a racial, religious, or personal bias against a defendant individually or as a member of a group.

l. An officer’s excessive use of force, un-truthfulness, dishonesty, bias, or miscon-duct in conjunction with his or her service as a law enforcement officer.

2. Officer personnel files that are related to mat-ters stated above may be provided or open to the prosecution or defense as part of a Brady disclosure, as is consistent with the law.

C. Duty to ReportOfficer adherence to departmental policy and rules in all matters is an imperative of his or her office. Breaches of such rules and policies related specifically to honesty and veracity may have direct bearing on his or her ability to continue serving as a law enforcement officer.1. Officers whose history regarding integrity,

honesty, credibility, veracity, and related mat-ters has negative bearing on their professional reputation may be subject to Brady disclosure requirements.

2. It is the obligation of individual officers to inform their superior officer of any elements of their employment as a police officer, infor-mation contained in investigative reports, or evidence connected with a criminal indictment or trial that they reasonably believe may be subject to Brady disclosure.

3. Supervisory officers are equally responsible for ensuring that they act with due diligence in identifying any potential Brady material connected with any criminal proceeding for which they have oversight and for bringing such material to the attention of the prosecutor in a timely manner through established report-ing procedures.

D. Departmental Response to Officer Testimonial ImpeachmentOfficers who are knowingly and intentionally untruthful, are otherwise dishonest in the course of their employment, or use excessive force are subject to impeachment of testimony at trial. Such officers are also subject to disciplinary action up to and including termination of employment.

E. TrainingAll sworn law enforcement officers of this department shall receive training in Brady disclosure requirements.

F. Records Retention2

2 Department executives should discuss with legal counsel require-ments for retention of any records of potential Brady importance and incorporate such guidance in their departmental policy. Such guid-ance should be based on any state requirements as well as additional measures that may be required to sufficiently conform to due diligence requirements under Brady.

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Every effort has been made by the IACP National Law Enforcement Policy Center staff and advisory board to ensure that this document incorporates the most current information and contemporary professional judgment on this issue. However, law enforcement administrators should be cautioned that no “model” policy can meet all the needs of any given law enforcement agency. Each law enforcement agency operates in a unique environment of federal court rulings, state laws, local ordinances, regulations, judicial and administrative decisions and collective bargaining agreements that must be considered. In addition, the formulation of specific agency policies must take into account local political and community perspectives and customs, prerogatives and demands; often divergent law enforcement strategies and philosophies; and the impact of varied agency resource capabilities among other factors.

This project was supported by a grant awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Points of view or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice or the IACP.

IACP National Law Enforcement Policy Center Staff: Philip Lynn, Manager; Sara Dziejma, Project Specialist; and Vincent Talucci, Executive Director, International Association of Chiefs of Police.

© Copyright 2009. Departments are encouraged to use this policy to establish one customized to their agency and jurisdiction. However, copyright is held by the International Association of Chiefs of Police, Alexandria, Virginia U.S.A. All rights reserved under both international and Pan-American copyright conventions. Further dissemination of this material is prohibited without prior written consent of the copyright holder.